Fair-housing insanity, diversity champs, and Harvard

The Obama administration last week issued regulations formally adopting a “disparate impact” approach to enforcing the Fair Housing Act. This means that you can be found liable for illegally discriminating in a housing-related matter by following some policy that has a disproportionate effect, even though the policy is nondiscriminatory by its terms, in its application, and in its intent. So, for example, if a bank’s lending policy for home loans results in, say, a higher percentage of Asians being accepted than Latinos, then it can be held liable (banks have been actively opposing the regulations, unsurprisingly).

The disparate-impact approach is bad law and bad policy, especially in the housing area, as discussed in this brief the Center for Equal Opportunity recently joined and helped write. Here’s hoping the Supreme Court grants review in a pending case out of Mt. Holly, N.J. — which raises this issue and in which a petition for review has been filed — and puts an end to this nonsense.

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Speaking of Supreme Court briefs, here’s another one that I joined and helped write. The brief defends the State of Arizona’s policy of requiring those registering to vote to offer some proof of their U.S. citizenship.

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In a recent article in Corporate Counsel magazine, entitled “Diversity Champs,” a number of corporate general counsels proudly recounted their companies’ efforts to ensure that more women and minorities are hired at their companies and used by the law firms they retain. Those efforts included plenty of practices by the companies, the law firms, or both that violate Title VII of the 1964 Civil Rights Act, which prohibits discrimination on the basis of race, ethnicity, and sex. (See, for example, this discussion.)

The list of shame includes James Breedlove of Praxair (who is “prodding the company’s outside firms to put more women and minority lawyers on Praxair matters”); Elisa Garcia of Office Depot (“When I first met with firms, I’d ask if there were minority and women lawyers on our matters”; she then “began requiring outside firms to track the number of hours that women, minority, and LGBT attorneys work on [Office Depot] matters”); Gary Kennedy of American Airlines (“We’ve been pounding [outside counsel] pretty hard” to “put more diverse lawyers . . . on American’s matters”; the company also offers a mentoring program and summer internships for “minority law students”); and Donald Liu of Xerox (“clearly communicating to [outside law] firms, both verbally and in writing, that Xerox expected to see more diverse staffing on its matters”). The irony is that the job of a corporate general counsel is to help make sure that his company does not violate the law; here’s hoping these companies get hauled into court, along with their law firms who refused to stand up to them.

Here’s an interesting exercise, by the way: Go through that last paragraph and, everywhere it says “women” or “minority,” mentally substitute “white males” — as in “prodding the company’s outside firms to put more white males on Praxair matters.” I wonder how that would go down?

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If you haven’t already read Ron Unz’s National Review Online piece on “Racial Quotas, Harvard, and the Legacy of Bakke,” you really should. His thesis is that, starting with Lewis Powell’s opinion in the Supreme Court’s 1978 Bakke decision, the justices seem to have taken at face value Harvard’s assurances that it gives only limited weight to race in student admissions and eschews anything so ham-handed as a racial quota. But based on Mr. Unz’s ingenious and painstaking research, it turns out that Harvard and other Ivies have apparently been employing a strict anti-Asian quota now for a couple of decades. And so maybe the Court ought to rethink all this.

Addendum: Larry Purdy has written that the Harvard Plan has in its own origins the apparent desire for an anti-Jewish quota. His book, Getting Under the Skin of “Diversity,”discusses this and cites two supporting law-review articles by two academics who don’t agree on much else, Alan Dershowitz and (then professor) Antonin Scalia.

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